This in-depth article discusses the most common issues with an injury victim’s pain and suffering claim resulting from a negligent act occurring anywhere in the State of Florida, regardless if the injury is from a slip and fall, a defective product, medical malpractice, a car crash, or a work related accident caused by someone other than the employer or an employee.

The general questions we will address here about Florida pain and suffering claims, include:

Introduction

Simply put, when someone is hurt in an accident in Florida due to the negligence of another party (which can include a corporation or other legal entity), state law provides that the injured party can be compensated for his or her pain and suffering. The recovery of compensation for pain and suffering is usually part of an overall damage claim against the person (or persons) responsible for the accident. [1] Damages are grouped into two general categories: economic damages such as medical bills and lost wages and non-economic damages (also known as intangible damages) such as pain and suffering from bodily injuries and loss of the capacity to enjoy life.

What is Pain and Suffering?

The law recognizes two kinds of “pain and suffering” claims: mental and physical.[1] Mental pain and suffering involves things like fear, embarrassment, humiliation, anger, depression, and other emotions that hinder the enjoyment of living which result from the accident and its aftermath. Post Traumatic Stress Disorder (PTSD) can also be a type of mental pain and suffering. [2] Physical pain and suffering includes not only the pain and trauma experienced by the accident victim at the time of the injury, but the pain and discomfort experienced during the recovery process and into the future. This would include compensation for one’s inability to perform physical activities as well or as often as one used to prior to the incident.

How are “pain and suffering claims” determined?

Unlike other kinds of damages after an accident, like medical bills and lost wages which are quantifiable, it is not easy to document someone’s pain and suffering. Florida law recognizes pain and suffering as a form of “general damage claim” and allows some leeway in how an injury victim can substantiate the pain and suffering they have experienced and can reasonably expect to experience in the future.

In calculating these damages, a number of factors can be considered in determining the amount of compensation to be paid to an accident victim, including the severity of the injury, type of medical treatment received, the length of recovery, and long term consequences, if any, of the injuries and the impact that the injuries have had on the victim’s life. However, each case will be different, because not only is each accident unique but each person deals with pain differently. [3]

How do you claim these damages (what documentation do you need to do so)?

Florida law does not provide a laundry list of items that can be used to support a claim for pain and suffering. However, it is common to see the following documentation presented in this type of injury claim:

The doctor’s written opinion of the victim’s pain and suffering past, present, and future;

Drug prescription history of medications prescribed to the victim (pain medications, drugs for depression or anxiety, etc.);

Mental health provider’s written opinion on pain and suffering past, present, and future;

The injury victim’s own testimony;

The victim’s spouse and other loved ones concerning their perspective and first-hand accounts of the impact the injuries have had on the victim’s day to day activities;

Written opinions, research studies, etc., by experts regarding consistency of the victim’s claim with others who are similarly situated.

What are the “threshold requirements” to collect damages under Fla Statute 627.737?

The Florida Legislature has passed statutes that impact injury claims and damage calculations in some situations. For instance, all motor vehicle accidents must have their injury claims align with Florida Statutes 627.730 – 627.7405. Of particular importance to pain and suffering damages is Florida Statute 627.737, which states (in part) [4]:

In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

Significant and permanent loss of an important bodily function.

Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

Significant and permanent scarring or disfigurement.

Death.

This law is known for providing the “threshold requirement” for plaintiffs and claimants seeking pain and suffering damages in a Florida car accident case. Here, the law places a burden on the injury victim to provide proof that he (or she) has met the criteria set up in this statute for being awarded these damages.

In sum, to obtain pain and suffering damages in most Florida traffic accident, the injured person must provide proof of either: (1) death of the victim; or (2) permanent injuries involving (a) significant loss of an important bodily function; or (b) significant scarring or disfigurement; and (3) the permanency of the injuries must be shown to exist with a reasonable degree of medical probability-meaning that is more likely than not that a permanent injury or permanent aggravation of a pre-existing condition resulted from the car accident.

Once the injury victim has provided evidence of a permanent injury and their need for continued treatment, it is reversible error for there not to be a damage award. [5]

Statute of Limitations

In Florida, injury claims based upon negligence have to be filed within a certain time before the claim is barred. The Florida Legislature has set these deadlines in specific statutes, called statutes of limitations.

If a victim does not file a lawsuit before that deadline, then the lawsuit will not be permitted to proceed. Meaning, a judge has the power to dismiss the lawsuit by granting a motion for summary judgment in favor of the defendant.

What evidence is needed to prove your pain and suffering?

Both in settlement negotiations and at trial, the injury victim bears the burden of providing authentic, admissible evidence of pain and suffering, both physical and mental. Florida law is clear: injury victims are required to provide credible evidence of their claims (speculation or uncertainty will void pain and suffering damage awards). [6]

Some evidence of pain and suffering should not be difficult to produce. Collecting the victim’s prescription pain medication is an easy way to document the pain he or she is experiencing. Having a doctor provide a written statement, or having the victim’s treating physician take the stand to testify on his opinion of the long-term pain realities of the victim is standard evidence for pain and suffering claims.

However, other evidence may be difficult to ascertain. Evidence of depression, loss of enjoyment of life, etc., are difficult to evaluate and may only be done through the expert testimony of health care providers.

The veracity and trustworthiness of the claimant is important in proving these damages. Pain and suffering (particularly in large awards) awards depend, in part, on the honesty of the claimant. Exaggeration by a victim is not helpful. Character evidence including testimony of employers, teachers, friends and family, etc., along with work history and employment records can be helpful in evaluating the victim’s propensity to be truthful.

What evidence is used to prove a claim depends upon when the case is resolved. If the claim is resolved through a settlement, whether at mediation or during other post-suit negotiations, then the evidence used will likely be what is found during the discovery process, which includes depositions, interrogatories, and the review of medical records.. If the case proceeds through trial to a jury, then the jurors will decide the amount to award for pain and suffering based the evidenced produced from discovery plus expert testimony that has been vetted by the lawyers through cross examination. An important element to note here is that juries are given a lot of discretion in determining pain and suffering compensation.

How do Florida juries determine pain and suffering damages?

Most injury claims are resolved without the need to try the case in a courtroom. However, there are times when the parties cannot agree on an award, and when this happens, the injury victim’s pain and suffering claim is decided by a jury.

At the conclusion of a trial, the jurors are given instructions by the judge as what elements to evaluate when deciding damages. Afterwards, jurors freely debate among themselves all of the evidence submitted by both the plaintiff and the defendant during the trial. Pain and suffering award have many moving parts because they are “non-economic” damages (meaning, they have no precise value). For this reason, if a jury finds a defendant liable and awards damages for pain and suffering, mental anguish, bodily injury and loss of the capacity for enjoyment of life, the amount awarded can be challenged by either side to the judge.

A defendant will simply claim that the award is excessive while a plaintiff, unhappy with the award, will plainly argue that the award is inadequate as a matter of law. However, in most cases, an award of pain and suffering by a jury will not be disturbed by the trial judge or an appellate court unless the amount has no basis. The jury is instructed to consider the evidence and to award an amount that is fair and just in light of the evidence presented. Different juries can award widely varying amounts for the same injury and judge’ normally will not alter what a jury awards. It is not the job of a judge to second guess what a jury has awarded even if the judge would have awarded a different amount.

In this regard, there is a “remittitur and additur” statute in Florida, allowing the trial court judge to adjust the jury’s calculations of pain and suffering if either the plaintiff or the defendant makes a motion for this relief. Florida Statute 768.74 provides this as a general rule for all jury awards. [8] Florida Statute 768.043 provides this specifically for Florida motor vehicle accidents. [9]

Florida Statute 768.043 states:

(1) In any action for the recovery of damages based on personal injury or wrongful death arising out of the operation of a motor vehicle, whether in tort or in contract, wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.
(2) In determining whether an award is clearly excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.
(3) It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact, in light of a standard of excessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified only with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of Florida.

Conclusion

Calculating pain and suffering damages is a difficult task to accomplish. After all, how can a third party determine the amount of a pain a negligence victim has or is suffering due to his or her injuries. Thus, the testimony of the victim can be critical in making a determination of how much compensation a victim should receive. That’s why we recommend to all of our personal injury clients that they be honest about their injuries. Their credibility and truthfulness is a critical component to valuing their damages.

Insurance companies are notorious for minimizing these claims for being exaggerated or without merit. The reason for this is due in part to Florida law requiring victims of certain types of injury cases to have significant and permanent injuries before a jury can award compensation for pain and suffering and other non-economic damages.

Once a case is presented to a jury for its decision on liability and compensation, it is for the jury to decide what evidence to believe or disregard. Juries are given wide discretion as the fact-finder in personal injury lawsuits. Which means, unless the award is excessive or inadequate as a matter of law, a judge will not change a jury’s decision.

What Should You Do Now?

If you have been harmed as a result of negligence and intend to pursue a pain and suffering claim, a good piece of advice is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and how most insurance companies respond to these claims. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

Pain is a subjective sensation. To date, validation of an individual’s claim to be experiencing pain rested on a history of injury, supportive physical exam, imaging studies, and evaluation by pain specialists. Functional MRI has been shown by many researchers to be able to show increased brain activity in known pain sensory areas. Use of functional neuroimaging finally allows for the objective documentation of the existence of pain. MMT has experience in the use of neuroimaging to provide objective graphically illustrated fMRI scans to support claims of (acute inducible) pain. This information can be used, among other things, to support / document injury claims.